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Plea Bargaining

Plea bargaining essentially involves a private negotiation between the prosecution and defence lawyer on the charges, case facts and/or prosecution’s sentencing submission. For example, reducing murder to manslaughter, or withdrawing one charge to allow a guilty plea to fewer charges.

Its primary aim is to arrive at a mutually acceptable deal between the prosecutor and the defence, which results in the accused pleading guilty. This process is often justified for its efficiency benefits, as it saves money and resources and spares victims and accused persons from prolonged proceedings.

Although offering these benefits, plea bargaining is a largely non-transparent process to those outside the bargaining room. Across most Australian jurisdictions, plea bargaining is not recognised in or controlled by any legislation, and no external data is kept as to when or why plea bargaining occurs, which limits public understanding of the process and can raise doubts over the motivations underpinning the deals and the subsequent legitimacy of the agreements made.

This is largely because plea bargaining falls under the discretionary powers of the prosecution, which means the public is left to trust that the parties involved in the process have upheld the same judicial principles that would apply to a conviction reached after trial.

When a matter is resolved by a guilty plea, the full circumstances surrounding the offence are generally not publicly available – even in the Mokbel and Williams cases, the number of charges withdrawn and investigations concluded in order to gain their guilty pleas are based on partial information and conjecture.

GEORGE HANNA

Partner

ERIC PETERSEN

In-House Consultant

DAVID LI

Corporate Counsel

SANTHY KOKKINOS

Graduate Solicitor

Lilian Saleh

Office Manager

PREPARING FOR COURT

The first time you have to go to Court is called a ‘mention’. If you plead guilty, your case will usually be dealt with on that date and you will be sentenced for that offence.

Factors to consider before going to Court:

The offence you committed

The reason why you committed that offence

Whether you have a good explanation for the offence

The maximum penalty that can be given by the Court

What you can tell the Court to try to explain that offence

Who could write character references for you

Your criminal and driving history and any offences that you have been convicted of.

For more information, please refer to LawAssist’s ‘Pleading guilty’ section.

PRESENTING YOUR GUILTY PLEA IN COURT

During the mention, the Magistrate will ask you how you intend to plea. If you tell the Magistrate you want to plead guilty, based on the seriousness of your offence, he/she will sentence you on the spot.

What happens when you are sentenced:

The Prosecutor will give the Magistrate a document setting out the circumstances in which the offence was committed and your criminal/driving history (if you have one)

The Magistrate will read the documents

You will be asked whether you wish to say something (‘make submissions’) or if you have any document you would like to give the Court

The Magistrate will consider your submission and/or documents

The Magistrate will make a decision

PREPARE YOUR SUBMISSIONS

We always encourage our clients to write down the main points they wish to raise with the Magistrate.

If you are nervous about speaking in Court, you can:

Practice speaking to the Magistrate with one of your friends or relatives

Go to a local court and watch some cases. Call the Court ahead of time to ask if any sentencing hearings are held.

Put your submission in writing by preparing a letter to the Magistrate

What should be included in my submission?

1. Circumstances of the offence

Date

Time

Location

Details of event

Factors that affected your ability to make a proper judgment (i.e. medical or personal problems etc.)

2. Education history

Secondary school (High school)

Tertiary school (University, TAFE etc.)

Other training/education completed or under completion

3. Employment history

Start date

Length of employment

Brief description of position

4. Financial status

Income

Outgoings

Assets

Liabilities

Ability to pay any fine ordered by the Court

5. Family background

Single, married, de facto, separated

List any dependent children

6. Criminal history and driving history (if any)

List offences you have been convicted of

How long you have held a license

Any suspension or disqualification

7. Character

Community involvement

Volunteer work

8. Remorse

How you feel about the offence

Your understanding of the seriousness of the offence

9. Orders sought

What orders you would like the Court to make

For more information, please see the ‘sample submissions to Court –pleading guilty’ prepared by LawAssist.

PREPARE YOUR CHARACTER REFERENCES

Character references are letters written by referees (individuals) who know you and can write about your good character. These referees should have a good reputation, should not have a criminal record and must know why you are going to Court.

When pleading guilty, it is a good idea to bring 2 or 3 character references with you in Court.

Who should be my referee?
Your referee could be:

A neighbour

Your employer

A work colleague

Your doctor

A teacher

A family friend

A member of a club or organisation that you belong to

Your referees must be aware of your offence so they can say in the letter that they are aware about it but that you still have a good character.

At GMH Legal we recommend that all your referees be over the age of 18.

What should be included in the character reference?
The referee should include each of the following points:

Their name and occupation

That they are aware that you are appearing in Court to respond to the charges/offences

That they are aware that you are pleading guilty or non-guilty

How long they have known you for

How they know you

Their opinion of your character

Anything else about the charges which might help the Court

The referee’s opinion about the appropriate penalty or any statement that the referee knows is false should NOT be included in the character reference.

Make sure that the letter is date, neatly written or typed, have the referees’ names and addresses on the right hand side and are signed with the name of the person printed underneath.

Please along with you to the Court the original letters plus 3 copies.

For more information, please see the’ sample character reference’ letter prepared by LawAssist.

PLEADING GUILTY IN WRITING

If you want to plead guilty but you cannot attend your Court date, you might be able to fill out a form telling the Court what you want to do. The form is called a ‘Written Notice of Pleading’, which indicates whether you intend to plead guilty or not guilty.

If you tell the Court in writing that you intend to plead guilty, you may not need to go to Court. The Magistrate may sentence you in your absence, however it is always best to attend Court in person if you can, as you will be able to answer any questions to Magistrate has when they are dealing with your case.

A Written Notice of Pleading form must be sent to Court at least 7 days before the mention date. Otherwise, the Court may make a decision without considering the content of the form.

Generally, a blank Written Notice of Pleading form will be sent to you with your Court Attendance Notice. If not, you can print one directly from the Local Court website.

For more information, please refer to LawAssist’s ‘Pleading guilty in writing’ section.